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[2011] ZASCA 139
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Emfuleni Resorts (Pty) Ltd v Mazizini Community and Others (655/2010) [2011] ZASCA 139 (23 September 2011)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
C
ase No:
655/2010
In the matter between:
EMFULENI RESORTS (PTY) LTD
…........................
FIRST
APPELLANT
SUN INTERNATIONAL (CISKEI)
LIMITED
…...............................................................
SECOND
APPELLANT
and
MAZIZINI COMMUNITY
…...................................
FIRST
RESPONDENT
MINISTER OF RURAL DEVELOPMENT
AND LAND REFORM
….....................................
SECOND
RESPONDENT
REGIONAL LAND CLAIMS
COMMISSIONER, EASTERN CAPE
…................
THIRD RESPONDENT
and
PRUDHOE COMMUNITY
….....................
INTERVENING
APPLICANT
Neutral citation:
Emfuleni
Resorts v Mazizini Community
(655/2010)
[2011] ZASCA 139
(23
September 2011)
Coram:
Harms AP, Mthiyane,
Snyders, Bosielo JJA and Petse AJA
Heard: 31 August 2011
Delivered: 23 September 2011
Summary:
Application
for postponement of an Appeal ─ Governing principles discussed
and application refused.
Competing land
claim not brought to attention of the Land Claims Court ─ Order
granted by it rescinded and matter remitted
for consideration of
competing claim.
Regional Land
Claims Commissioner
ordered
to pay costs.
_____________________________________________________________________
ORDER
On appeal from:
Land
Claims Court, Randburg (Bam JP sitting as court of first instance):
1. The third respondent’s
(the RLCC) application for postponement of the appeal is dismissed
with costs.
2. The application by the Prudhoe
Community for the rescission of the judgment under case no LCC 23/07
is upheld with costs.
3 (a) The appeal is struck from
the roll.
(b) The costs of the appeal are
to be paid by the third respondent (the RLCC).
4. The third respondent is
directed to pay the costs relating to the proceedings in the LCC in
case 23/07.
___________________________________________________________
JUDGMENT
MTHIYANE JA (HARMS AP,
SNYDERS, BOSIEO JJA and PETSE AJA CONCURRING)
Introduction
[1] The appeal arose from the
decision of the Land Claims Court (Bam JP) in which Mazizini
Community (the first respondent) was,
in terms of s 35(1) of the
Restitution of Land Rights Act 22 of 1994 (the Act), awarded land
comprising the Fish River Sun Hotel
Complex. The court made an order
in the following terms:
‘
1.
The Mazizini Community is entitled to the restoration of the land
which comprises the Fish River Sun Complex being presently
a hotel
and golf resort which borders the Eastern Bank of the Fish River in
the Eastern Cape and the Indian Ocean in terms of ‘the
Act’
in settlement of the claim.
The claimant
community is hereby granted leave through its representatives to
obtain transfer of ownership of the above property
to itself or to
such other entity as its constitution allows.
The third
respondent is to include the claimant community as a beneficiary of
a State support programme for development.
4. There is no order
as to costs.’
[2] The current owners of the
land, the first and second appellants, were granted leave by the
court a quo to appeal to this court.
Their attack on the court’s
judgment was confined to the question of whether the order granted
was appropriate. In their
appeal the appellants contend for a
compensatory award. The appeal was set down for hearing on 31 August
2011.
[3] Prior to the hearing of the
appeal another community, the Prudhoe Community, who were not
involved in the proceedings in the
court a quo, lodged an application
to this court on 19 May 2011 seeking an order in the following terms:
‘
1.
Rescinding the order of the Land Claims Court made by the Honourable
Mr Justice Bam under case number LCC 23/07 on 12 March 2010
awarding
restoration of Farm 242, Farm 243 and Farm 235 in the Peddie district
to the first respondent;
Directing the third
respondent within 3 months of the date of this order, to refer the
applicant’s land claim along with
any other competing land
claims in respect of the land claimed by the applicant, to the Land
Claims Court for adjudication;
Remitting the land
claim of the Mazizini Community to the Land Claims Court for
adjudication simultaneously with, or taking into
account, competing
claims in respect of the land claimed by the Mazizini Community;
Granting further or
alternative relief;
Directing that the
second and third respondents pay the costs of the application.’
The application for a
postponement of the appeal and the rescission application.
[4] Before the commencement of
argument on the application for rescission and remittal lodged by the
Prudhoe Community, an application
for a postponement of the appeal
and the rescission application were made by the third respondent. The
reason given for the indulgence
sought was that the third respondent
needed time to determine the validity of the claim by the Prudhoe
Community. Mr Gladman Tom
(Mr Tom), a representative who deposed to
an affidavit on behalf of the Prudhoe Community, lodged a claim with
the office of the
third respondent on 10 December 1998, before the
deadline which was set at 31 December 1998. The Mazizini Community’s
land
claim was lodged at more or less the same time. The third
respondent proceeded to investigate and pursue the claim of the
Mazizini
Community, the first respondent, and did nothing about the
claim of the Prudhoe Community apart from publishing a notice in the
Government Gazette in terms of s11 of the Act.
[5] The office of the Regional
Land Claims Commissioner has now changed hands. The previous
commissioner was Ms Linda Faleni. Her
successor is Mr Sanjay Singh,
the deponent for the third respondent. Neither of them are able to
proffer any explanation why nothing
was done about the claim of the
Prudhoe Community. What Mr Singh says in his affidavit in support of
the application for a postponement
is that he needs time ‘to
enable [him] to verify the information in the file, interview the
relevant officials previously
involved in processing the matter and
[to] determine the status of the claim lodged by Mr Tom in December
1998 and how it impacts
on the land that is the subject of the
appeal.’ He is therefore in no position to explain why the
claim of the Prudhoe Community
(for a period of some twelve or
thirteen years) was not processed or the failure of that office to
respond to the ongoing correspondence
which it had received from the
Legal Resources Centre. Nor is he in a position to explain why the
court a quo and the other interested
parties were not appraised of
the existence or potential of a competing claim.
[6] Instead of explaining the
delay the third respondent devoted much of his time in argument
before us, attempting to impugn the
validity of the Prudhoe
Community’s claim. The primary attack was premised on the
assertion that the Community’s claim
was not validly lodged, in
that Mr Tom, had submitted an incomplete claim form. Counsel for the
third respondent was hard pressed
to explain why this point was not
raised at the time when the form was handed over to the third
responded in 1998 ─ why only
now ─ some 13 years later.
[7] When counsel was pressed on
why Mr Tom was not assisted with the completion of the blank form, if
this was considered to be
a problem, no explanation was forthcoming.
In terms of the Act the third respondent is obliged to assist
claimant communities.
In terms of s 6(1)(b) of the Act the third
respondent is required to ‘take reasonable steps to ensure that
claimants are
assisted in the preparation and submission of claims’.
The third respondent was unable to say what steps, if any, were taken
to assist Mr Tom with the lodgement of the claim as required by s
6(1)(b) of the Act. Having failed to render such assistance,
I do not
think it lies in the mouth of the third respondent to argue that the
Prudhoe Community claim was not validly lodged. It
is clear from the
preamble to the
Restitution of Land Rights Act that
it is national
legislation which was designed to give effect to the Constitutional
obligation to provide ‘for restitution
of property or equitable
redress to a person or community dispossessed of property . . . as a
result of past racially discriminatory
laws or practices.’ The
third respondent’s reliance on the incomplete form is an
opportunistic and futile attempt to
cover up for the dereliction of
duty by the officials concerned, as the claim in respect of one farm,
203, was accepted and published
in the Government Gazette.
[8] The application for a
postponement was opposed by the appellants and the Prudhoe community.
They submit that it was based upon
an incorrect premise. They argued
further that it is not for this court to, at this stage, debate the
validity or otherwise of
the Prudhoe Community’s claim. Nor is
it the function of the Regional Land Claims Commissioner to
adjudicate upon the merits
of claims for restitution. According to
the appellants what is required, is for a claimant to put up an
arguable case.
1
This, they submit, the Prudhoe
Community has done and are therefore entitled to have their claim
considered by the Land Claims Court.
I agree.
[9] It has also not been shown
what purpose the postponement of the application would serve other
than to delay the finalisation
of the matter that has dragged on for
more than a decade. Public interest requires that there should be an
end to litigation.
2
More importantly the third
respondent has failed to show that there is any justification for the
postponement. The principles governing
the granting or refusal of a
postponement were summarized by the Constitutional Court in
National Police Service Union
& others v Minister of Safety and Security & others
2000
(4) SA 1110
(CC) para 4 where it was said:
‘
The
postponement of a matter set down for hearing on a particular date
cannot be claimed as of right. An applicant for a postponement
seeks
an indulgence from the Court. Such postponement will not be granted
unless this Court is satisfied that it is in the interests
of justice
to do so. In this respect
the
applicant must show that there is good cause for the postponement.
In
order to satisfy the Court that good cause does exist,
it
will be necessary to furnish a full and satisfactory explanation of
the circumstances that give rise to the application
.
Whether a postponement will be granted is therefore in the discretion
of the Court and cannot be secured by mere agreement between
the
parties. In exercising that discretion, this Court will take into
account a number of factors, including (but not limited to)
:
whether
the application has been timeously made
,
whether the explanation given by the applicant for postponement is
full and satisfactory, whether there is prejudice to any of
the
parties and whether the application is opposed.’ (Emphasis
added.)
[10] The threshold requirement
that an applicant for a postponement has to meet was put even more
strongly in
McCarthy
Retail Ltd v Shortdistance Carriers CC
2001
(3) SA 482
(SCA) para 28 where Schutz JA said:
‘
.
. . [I]n order for an applicant for a postponement to succeed, he [or
she] must show a “good and strong reason” for
the grant
of such relief.’
[11] In my view the third
respondent has not made out a case for the granting of a postponement
and has failed to meet any of the
threshold requirements laid down
for the granting of such relief.
Application for rescission and
remittal
[12] Turning to the Prudhoe
Community’s application for the rescission and remittal of the
matter, the application is not
opposed by the appellants. They
consider the relief sought as being the most appropriate in the
circumstances. The appellants argue
that had the third respondent
properly investigated the matter from the outset, the parties would
not be in the position in which
they find themselves now – a
fact which has a bearing on the question of costs.
[13] As expected the Prudhoe
Community’s rescission and remittal application is opposed by
the third respondent. The third
respondent’s primary submission
is that the Prudhoe Community failed to show that a valid claim was
lodged. It was submitted
that validity or otherwise of the claim is a
necessary pre-condition for the granting of the rescission
application. I disagree.
It is not for this court at this stage to
determine the validity of the Prudhoe Community’s claim.
Disputes as to the validity
of claims is a matter ultimately for the
Land Claims Court to decide.
3
On the papers before us it is
clear that the Prudhoe Community has at the very least a potential
claim on the very land in respect
of which the court a quo granted a
restoration order.
[14] An application for
rescission may be brought under either
s 11(5)
and (5A) or
s 35(11)
,
although the application form ex facie complies with
s 11
, it is not
necessary to decide the issue because it clearly satisfies the
provisions of
s 35(11).The
relevant portion of which reads as
follows:
‘
(11)
The Court may, upon application by any person affected thereby and
subject to the rules made under
section 32
, rescind or vary any order
or judgment granted by it
. . .
which was void from
its inception or was obtained by fraud or mistake common to the
parties;
. . .
. . .
Provided that where
an appeal is pending in respect of such order, or where such order
was made on appeal, the application shall
be made to the
Constitutional Court or the Appellate Division of the Supreme Court,
as the case may be.’
[15] On the facts it is clear
that neither the judge a quo nor the parties involved in the matter
in the Land Claims Court were
appraised of the Prudhoe Community’s
competing claim or their potential claim. It is the third respondent
who should have
done that. As a result of this non-disclosure all the
other interested parties including the court a quo laboured under the
mistaken
belief that the Mazizini Community were the sole claimants
of the land in question. There can be no doubt that the Prudhoe
Community
have shown that they are ‘affected’ by the
order made by the Land Claims Court as provided for in s 35(11) of
the Act.
Conclusion
[16] In sum it is not in the
interests of justice to postpone the appeal. On the contrary it would
be in the interests of all the
parties concerned in this matter if
the order of the court a quo were set aside and to have the matter
remitted to the court a
quo for reconsideration.
Costs
[17] I turn briefly to the
question of costs. It is clear that had the RLCC performed its
statutory duties properly the appeal would
have proceeded and the
matter would not have had to be remitted to the LCC. Therefore the
RLCC itself would not be seeking a postponement
of the appeal. The
blame for the striking off of the appeal from the roll, the
rescission and remittal of the matter and the costs
incurred as a
result of all of this must inevitably fall squarely on the shoulders
of the RLCC. So also is its failure to bring
the competing or
potential claim to the attention of Judge President Bam, the
presiding officer in the court below. It follows
that all the costs
incurred in this matter should be borne by the RLCC.
Order
[18] In the result the following
order is made:
1. The third respondent’s
(the RLCC) application for postponement of the appeal is dismissed
with costs.
2. The application by the Prudhoe
Community for the rescission of the judgment under case no LCC 23/07
is upheld with costs.
3 (a) The appeal is struck from
the roll.
(b) The costs of the appeal are
to be paid by the third respondent (the RLCC).
4. The third respondent is
directed to pay the costs relating to the proceedings in the LCC in
case 23/07.
___________________
K K MTHIYANE
JUDGE OF APPEAL
APPEARANCES
For Appellant: RG Buchanan SC
AD Dodson (for Prudhoe Community)
JR Brickhill
Instructed by:
Boqwana Loon & Connellan,
Port Elizabeth
Webbers, Bloemfontein
For 1
st
Respondent: XS
Nyangiwe
Instructed by:
Makhanya Inc, East London
Matsepes Inc, Bloemfontein
For 3
rd
Respondent: SM
Mbenenge SC
Instructed by:
The Office of the State Attorney,
Mthatha
The Office of the State Attorney,
Bloemfontein
1
Mahlangu
NO v Minister of Land Affairs & others
2005
(1) SA 451
(SCA) para 13.
2
McCarthy
Retail Ltd v Shortdistance Carriers CC
2001 (3) SA 482
(SCA)
para 28.
3
Afriblaze
Leisure (Pty) Ltd and others v Commission on Restitution of Land
Rights
[2010] 3 All SA 559
(LCC) at
560.